Request By:
Honorable Russell Stephens
Harrison County Judge
Courthouse
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Harrison County has been requested to consider an ordinance permitting certain kinds of retail activities to remain open for business on Sunday afternoons [after Sunday at noon] prusuant to KRS 436.165.
While KRS 436.160 contains a prohibition against the operation of a business on Sunday, the statute contains certain enumerated exceptions, including grocery and drug stores.
KRS 436.165(2) reads:
"In addition to the provisions of KRS 436.160:
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"(2) The fiscal court of each county, except as to activities permitted under KRS 436.160, shall have exclusive power to enact resolutions or orders permitting and regulating other retail sales and activities on Sunday in that portion of the county which lies outside of the corporate limits of any cities within said county, subject to subsection (3) hereof.
Your question is whether the fiscal court can pass an ordinance under KRS 436.165(2) permitting and regulating other retail sales and activities on Sunday [other than those permitted under KRS 436.160] in the unincorporated portion of Harrison County. The answer is "yes".
In a prior opinion, OAG 77-691, issued on November 21, 1977, we concluded that under the decision of the Supreme Court of Kentucky in Fiscal Court of Jefferson County v. City of Louisville, et al (76-604 et al) the fiscal court could not pass such an ordinance, since it would be a legislative act, and the Supreme Court had written that a fiscal court is not a legislative body.
However, on December 9, 1977, the Supreme Court of Kentucky modified its opinion and held in effect that the legislature may delegate legislative authority to fiscal courts, provided that it is done in terms of an express and specific statute. The court expressly recognized the principle that all power exercised by a fiscal court must be expressly delegated to it by statute. The court wrote in its modification that the thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly.
It is our opinion that KRS 436.165 is a thoughtful, purposeful and deliberate delegation of a specific power on the part of the General Assembly. The statute contains ample guidelines for the implementation by fiscal court of this legislative function. 16 Am.Jur.2d, Constitutional Law, § 227, p. 476; Doyle v. City of St. Paul, 206 Minn. 542, 289 N.W. 785, 788 (1939); and Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321 (1948). As the court said in Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735 (1948) 736, a fiscal court is a body of limited jurisdiction and may exercise only such power as the legislature has expressly or by necessary implication conferred upon it.
It is now our opinion that any fiscal court in Kentucky can legally enact an ordinance pursuant to KRS 436.165(2) in permitting certain retail activities on Sunday. OAG 77-691 is withdrawn.